Legal expert tackles dilemmas of asymmetrical wars.
By Philip Spiegel | February 11, 2011
The modern era of warfare has borne rise to profound and challenging new questions, forcing leaders, civilians and warriors to take a long look in the ethical mirror.
“We’ve moved from an era of collective guilt and collective punishment to an era where human rights really matter,” said David Luban in concluding his lecture, “Asymmetrical Wars: The Three Hardest Questions,” at Annenberg Auditorium Thursday afternoon. This talk was part of the yearlong “Ethics and War” series at Stanford.
Luban described asymmetrical war as war between two sides with radically different capabilities. It’s often referred to as a “fourth-generation war.” He posed the three “hardest questions” as these:
• Which civilians can be targeted by the military because they are direct participants in hostilities?
• How should militaries respond to human shields?
• How much risk must soldiers take to minimize casualties among enemy civilians?
Before addressing these questions, Luban pointed out that “trying to write laws to govern warfare has the smell of moral bankruptcy to pacifists.” But as Luban doesn’t consider himself a pacifist, he has no problem with dealing with ethical issues of war.
Regarding targeted killings—as in Israelis taking out leaders of Hamas or the U.S. drone strikes against Taliban militants in Pakistan—Luban said that it’s a principle of international law that warriors killing warriors are not murderers. However combatants are not free to attack non-combatants.
But in asymmetrical wars, the principles of just war are under stress. The weaker side will often wear civilian clothes to make it harder for the stronger side. They will also put in danger the people they are fighting for.
The Geneva Convention requires discrimination between military and civilian targets. Civilians shall enjoy this protection “unless, and for such time that they take a direct part in the hostilities.” It also calls for proportionality, stating, “unintended civilian injury cannot be excessive in relation to concrete and direct military advantage anticipated by the operation.”
Luban brought up the fact that civilians often carry out military activities sporadically, returning to their homes and civilian jobs between hostile actions. He said the Israeli Supreme Court ruled in 2006 that such civilians lose their immunity “for such time as they are committing a chain of acts.”
The Geneva Convention prohibits the use of human shields. The Israeli courts distinguish between involuntary and voluntary human shields, allowing only the former to be targeted while involuntary human shields are themselves “victims of terrorism.” However the International Committee of the Red Cross (ICRC) calls for protection of all human shields.
On the question of how much risk must soldiers take to minimize casualties among enemy civilians, Luban said he believes in “conducting a war in the presence of noncombatants on the other side as if your citizens were the noncombatants.”
He quoted a U.S. Army major and ethics instructor at West Point, who said, “I am not sure that a soldier needs to treat his own life as any less valuable than that of a civilian, but I insist that he must not treat his own life as more valuable.”
A member of the audience asked about the morality of using drones. Luban replied that he felt that there is no warrior-to-warrior belligerent privilege in controlling the drone 12,000 miles away from its target.
In response to a question about the differences in rules of conduct for police versus those for war, Luban said “ethical policing is using the minimum amount of violence.”
David Luban is professor of law and philosophy at Georgetown University and acting director of the Center on National Security and the Law. He has written extensively on justice in war for the past 30 years and recently testified in Congress on torture during interrogations.
The next Ethics and War lecture will feature Nancy Sherman speaking on “The Moral Wounds of War: The War Within,” on Feb. 22 at 4 p.m. in the Oak Lounge of Tressider Union.